Chattisgarh High Court
State Of Chhattisgarh vs Radhe Shyam Kori on 3 February, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No.453 of 2010
State of Chhattisgarh Through Inspector, Special Police
Establishment, Office of the Lokayukta, Raipur Division,
Raipur (C.G.).
---- Appellant
Versus
Radheshyam Kori, S/o Shri Prabhudayal Kori, Aged about
42 years, then Sub Engineer, Gramin Yantriki Sewa,
Dhamdha, Distt. Durg (C.G.).
---- Respondent
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For Appellant : Shri Shakti Singh, P.L. For Respondent : Shri Parag Kotecha, Advocate
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(Proceedings through Video Conferencing) Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 03.02.2022
1. Appellant/State has assailed the impugned judgment dated 18.08.2004 passed by First Additional Sessions Judge and Special Judge, Durg, C.G. in Special Case No.3 of 2001 whereby learned trial Court acquitted the respondent from charges levelled against him under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short 'P.C. Act').
2. Shri Shakti Singh, learned Panel Lawyer for the State/ appellant would submit that trial Court erred in acquitting respondent only considering the evidence of PW-7 Vipul 2 Agrawal (complainant) and PW-12 Smt. Radhika Agrawal (mother of complainant) recording that both witnesses have not supported the case of prosecution. He Submits that prosecution examined other witnesses including the members of trap team and Investigating Officer. Superintendent of Police, Lokayukt immediately after receiving complaint (Ex.P/2) gave voice recorder to complainant to record conversation of demand between complainant and respondent. Transcript of conversation recorded in voice recorder is placed on record as Ex. P/11 wherein demand of Rs.5,000/- is clearing appearing. On 01.10.2000, police gave Rs.5,000/- to complainant details of which was recorded. He went to house of respondent, handed over Rs.5,000/-, came out of house, gave signal to trap team. Trap team immediately entered into the house, recovered Rs.5,000/- from house of respondent, details of notes recorded by trap team are one and the same of notes which were recovered from house of complainant. He contended that prosecution examined PW-1 O.P. Mishra (independent witness), who was working as Assistant Engineer in Water Resources Department and part of trap team as well as panch witness, and PW-4 R.K. Pathak. It is argued that these witnesses have stated about preparation of trap team at Bhilai Hotel. Except statement that voice in voice recorder played before them was not clear, other evidence of 3 proceedings of trap has been proved. He also referred to statement of PW-16 S.R. Bhagat, Investigating Officer and argued that Investigating Officer in his evidence has proved case against respondent. Independent witnesses including panch witnesses and Investigating Officer, have supported the case of prosecution. Learned Court below ought not to have acquitted respondent from charges only relying upon evidence of complainant Vipul Agrawal (PW-7) and his mother Smt. Radhika Agrawal (PW-12). Referring to Section 20 of P.C. Act, he submitted that when once money handed over to complainant was recovered from house of respondent, there is presumption of involvement of respondent in commission of crime. Prosecution has placed on record voice recorder, its transcript and in furtherance of which, amount of Rs.5,000/- was also recovered from the house of respondent, hence there is ample evidence against respondent to prove his guilt. The order of acquittal passed by Court below is not sustainable. In support of his contention, he places reliance on the judgment passed by Hon'ble Supreme Court in case of Krishna Ram v. State of Rajasthan reported in (2009) 11 SCC 708.
3. Per contra, Shri Parag Kotecha, learned counsel for respondent opposing submissions of learned counsel for appellant would submit that learned counsel for appellant has 4 not made any submission on the findings recorded by trial court upon evaluating and appreciating evidence available on record. He submits that unless and until it is shown that findings recorded by trial Court are perverse, interference in the judgment of acquittal is not permissible. Considering material placed in charge-sheet, documentary and oral evidence, trial Court formulated two questions for consideration and both questions were held not to be proved by prosecution beyond reasonable doubt. Learned trial Court discussed Question No.1 from paragraphs No. 8 to 17 and relevant portion of which is from paragraphs No. 12 to 17 wherein trial Court upon appreciation of documentary and oral evidence came to the conclusion that prosecution failed to prove demand as alleged by complainant. Referring to evidence of Vipul Agrawal (PW-7) and Smt. Radhika Agrawal (PW-12), he submits that both the witnesses have not stated that there was demand by applicant of Rs.5,000/- as alleged. He submits that trial Court considered evidence of Smt. Radhika Agrawal (PW-12) wherein she categorically stated that she received Rs.1,98,000/-. She admitted the construction of panchayat building was not complete. Referring to evidence of Vipul Agrawal (PW-7), he submits that in his evidence he stated that prior to submitting Ex.P/19 application, he has not met respondent, there was no demand of any money from him or from his mother. There is 5 also an admission of complainant in his evidence that there is no demand, he of his own kept Rs.5,000/- in the house and came out. In further evidence, he stated that laying down the amount on Sofa was not within the knowledge of respondent, hence, trial Court has correctly recorded a finding that prosecution failed to prove demand of amount by respondent. It is argued that trial Court upon minute analysis and appreciation of evidence brought on record by prosecution as well as defence witnesses, passed a well reasoned judgment, which does not call for any interference. He places reliance on the judgments passed by Hon'ble Supreme Court in case of Subash Parbat Sonvane v. State of Gujarat reported in AIR 2003 SC 2169, Satvir Singh v. State of Delhi thru. CBI reported in 2014 AIR SCW 4924 and Selvaraj v. State of Karnataka reported in AIR 2015 SC 3834.
4. I have heard learned counsel for the parties and perused the material on record.
5. The minimum facts, which are relevant for disposal of this appeal are that, one Vipul Agrawal lodged a report to Lokayukt against respondent alleging demand of illegal gratification for preparing valuation report of panchayat building. Based on report of Vipul Agrawal (PW-7), Lokayukt prepared for trap, gave the complainant one tape recorder to 6 record discussion of demand of illegal gratification, which he did and returned the tape recorder to Police. Rs.5,000/- handed over by complainant was put into phenolphthalein powder and handed over to complainant. Complainant went to house of respondent, upon giving signal, trap team entered into the house of respondent, seized Rs.5,000/-, which were kept under the cushion of sofa. Upon washing of hands of respondent, solution turned into pink colour and he was arrested. Charge-sheet was submitted before the Court for offences defined under Section 7, 13(1)(d) and 13(2) of P.C. Act. Prosecution examined as many as 17 witnesses to prove the charges. Statement of respondent/ accused therein was recorded under Section 313 of Cr.P.C. Respondent also examined one defence witness Kunj Bihari Dewangan (DW-1). After conclusion of trial, learned Court below acquitted the respondent from charges levelled against him.
6. To prove the charge under Sections 7 and 13(1)(d) of P.C. Act, demand of illegal gratification is sine qua non to constitute the offence. Prosecution examined O.P. Mishra, member of trap team as PW-1. In his evidence, he supported the procedure adopted by Police for trap of respondent in aforementioned crime. After receipt of complaint, Police handed over tape recorder to complainant Vipul Agrawal (PW-7) to record talk/discussion of demand of money. As per 7 case of prosecution, complainant met respondent returned back the tape recorder. It was heard by member of trap team including O.P. Mishra (PW-1), its transcript was also recorded as Ex.P/1.
7. O.P. Mishra (PW-1) in paragraph-9 of his evidence very categorically stated that voice recorded in tape recorder was not clearly audible as to what was the discussion. Even when cassette was played on second time, voice was not audible clearly. R.K. Pathak, Assistant Engineer, Department of Water Management Division No.2, Balodabazar was examined as PW-4. In paragraph-3 of his evidence, he stated that voice in the tape record was not clear. In paragraph-10, he admitted that voice recorded in cassette was absolutely not clear, it is not clear, on what topic the discussion was recorded and voice in cassette of tape recorder is of whom. Complainant Vipul Agrawal (PW-7) in his evidence stated that there was no demand on the part of respondent directly from him and on the basis of suspicion, he made complaint.
8. Mother of complainant Smt. Radhika Agrawal (PW-12) has not supported the case of prosecution, she was declared hostile witness and cross-examined by prosecutor. In her cross-examination, she admitted that respondent has not demanded any money from her. She further admitted that valuation report was not prepared because entire work of 8 panchayat building was not completed. In her evidence, she categorically denied demand of any bribe by the respondent.
9. From aforementioned evidence available on record, prosecution failed to prove by cogent and reliable piece of evidence that respondent made demand of illegal gratification from complainant.
10. So far as recovery of amount from the house of respondent is concerned, Vipul Agrawal (PW-7) who was sent to satisfy the demand of illegal gratification, in his evidence clearly stated that he took money and kept it on table. In cross- examination, he stated that he kept money on sofa and thereafter, gave signal to trap team. In paragraph-17, he admitted that he did not inform respondent of keeping money on sofa. When trap team after receiving signal, entered into the house of respondent and searched, amount of Rs.5,000/- was recovered lying below cushion of sofa. Statement of Vipul Agrawal (PW-7) of keeping the amount is not reliable. His statement is not consistent as to place of keeping amount. At one place of evidence, he stated that he kept the amount on table and in cross-examination, he stated that respondent has not made demand of any amount and he with her own will, kept Rs.5,000/- and returned back. In paragraph-14, he stated that he took out the amount from his pocket, kept on sofa and thereafter, came out from the 9 house. In paragraph-17, he admitted that he has not informed the respondent that he kept Rs.5,000/- on sofa. He also admitted that amount of Rs.5,000/- was seized from the place, where he kept. O.P. Mishra (PW-1) Assistant Engineer, Department of Water Management Division No.2, Balodabazar and member of trap team in paragraph-12 admitted that amount of Rs.5,000/- was seized, kept under cushion of sofa.
11. In view of aforementioned evidence, place of seizure of alleged amount of Rs.5,000/- below cushion of sofa as also evidence of Vipul Agrawal (PW-7) i.e. complainant that he did not inform the respondent of keeping the amount would show that respondent was not aware of complainant keeping any amount in his house under the cushion of sofa.
12. With regard to change of colour of water when hands of respondent was washed, solution turned to pink, evidence of Vipul Agrawal (PW-7) would show that complainant after taking out amount of Rs.5,000/- from his pocket which was given to him by Police and putting it on sofa, he shake his hands with respondent. The powder which was on the currency notes might have remained in hands of complainant and while shaking hands, powder might have also come in the hands of respondent. Prosecution has to prove the demand of illegal gratification and its acceptance voluntarily 10 beyond reasonable doubt to bring home the guilt of respondent, which is missing.
13. In case of Suraj Mal v. State, (Delhi Administration) reported in (1979) 4 SCC 725, Hon'ble Supreme Court has held thus :
"2. .........In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under Section 342 has denied the recovery of the money and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement Under Section 342 Cr.P.C. Thus, mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money..........."
14. Hon'ble Supreme Court in case of M.K. Harshan v. State of Kerala reported in (1996) 11 SCC 720 while considering that currency notes were put in drawer without his knowledge and held thus:
"8. ........It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all this type of cases of bribery, two aspects are important. Firstly, there must be a demand and 11 secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.........."
15. Hon'ble Supreme Court in case of C.M. Sharma v. State of Andhra Pradesh reported in (2010) 15 SCC 1 has held thus :
"21. Mr. Rai, lastly submits that from the evidence of the prosecution witnesses the worst which can be said against the appellant is that currency notes were recovered from him. That itself, in his submission, does not constitute the offence. He submits that to bring home the charge the prosecution is required to prove beyond reasonable doubt that the accused had demanded the illegal gratification and accepted the same voluntarily. In support of the submission reliance has been placed on a decision of this Court in the case of C.M. Girish Babu v. CBI, 2009 (3) SCC 779 and our attention has been drawn to the paragraph 18 of the judgment which reads as follows:
"18. In Suraj Mal v. State, (Delhi Admn.), 1979 (4) SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the 12 substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
22. Another decision on which reliance is placed is the decision of this Court in the case of State of Maharashtra v.
Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200, in which it has been held as:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety."
23. We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe.......
16. In case of N. Sunkanna v. State of Andhra Pradesh reported in (2016) 1 SCC 713, Hon'ble Supreme Court has held thus :
13
"5. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW-3 though in the examination-in-chief stated so, in the cross- examination turned round and stated that the accused never asked for any monthly mamool and he did not pay Rs.50/- at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handed- over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine- qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there 14 is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55 and P. Satyanarayna Murthy v. State of Andhra Pradesh, (2015) 10 SCC 152."
17. Hon'ble Supreme Court in case of N. Vijayakumar v. State of Tamil Nadu reported in (2021) 3 SCC 687 while considering the appeal filed by employee after reversal of judgment of acquittal by High Court has held thus :
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.15
27. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu v. CBI, (2009) 3 SCC 779.
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-
11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused.
We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as 16 proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7.
The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)
(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is 17 not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."
18. In the case at hand, complainant Vipul Agrawal (PW-7) in his evidence has clearly stated that there was no demand of illegal gratification from respondent. PW-12 also not supported the case of prosecution of any demand. Voice recorder which was placed before other witnesses for preparing transcript was not clear as stated by two witnesses, namely O.P. Mishra (PW-1) and R.K. Pathak (PW-4) as to what was the talk/discussion recorded in voice recorder. There was no voluntarily acceptance of amount by respondent as complainant Vipul Agrawal (PW-7) himself stated that he kept the amount on sofa without knowledge of respondent. The amount seized was from, below sofa cushion which could not be seen by any person in ordinary course. Respondent was not aware of complainant keeping 18 any amount. This witness also stated that amount was seized from the place where the amount was kept.
19. In the aforementioned facts of the case, prosecution failed to prove demand of illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage. Mere recovery of amount from residence of public servant which was not known to him will in itself not sufficient to hold the public servant guilty for offence under Sections 7 and 13(1)
(d) of P.C. Act. Both the ingredients i.e. demand and voluntarily acceptance, are not satisfied.
20. Learned trial Court upon marshaling the evidence available on record, acquitted the respondent, which in the opinion of this Court, cannot be said to be illegal or perverse.
21. The case law relied upon by learned counsel for the appellant in Krishna Ram (supra) is on different facts. In the aforementioned rulings, currency note which was given by Police to complainant to satisfy demand was seized from the pocket of bush-shirt of accused person. In that fact of the case and evidence therein, Hon'ble Supreme Court dismissed the appeal against conviction.
22. For the foregoing discussions and evidence available on record as well as rulings of Hon'ble Supreme Court, view 19 taken by learned trial Court is a plausible view, hence, I do not find any tenable ground in this appeal to interfere with the order of acquittal passed by learned trial Court. The appeal being devoid of substance, which is liable to be and is hereby dismissed.
Sd/-
(Parth Prateem Sahu) Judge Yogesh